Ban the Box

Imagine this: You’ve served your prison sentence. You have little or no money. You’re looking for steady work. You know your record follows you, but you take a deep breath and dive into the job market hoping for a fresh start—a fair chance. One of the first questions on the job application inquires if you have ever been convicted of a felony—check the box yes or no.

The felony conviction question hits formerly convicted people hard. They must be honest, but they know a candid answer is so often a quick disqualifier for the job—resulting in a knee-jerk rejection by a potential employer who doesn’t review the applicant’s experience and qualifications. If you were an employer with otherwise equally qualifying job applicants, what would you do? Would your response depend on the crime committed? Would you care about a criminal conviction? Should you need to know? Is it more efficient to simply dismiss the yes box checker outright to avoid asking yourself these questions?

The trend in the country is toward providing the ex-offender population with an even playing field in the job market. According to the National Employment Law Project, twenty-nine states and more than 150 cities and counties have Ban-the-Box laws in place that remove a criminal conviction from the initial consideration of job applicants. California legislators are currently working to make Ban the Box a statewide reality.

Assembly Bill (AB) 1008

California is moving forward with the adoption of a fair hiring policy to bring consistency throughout the state. AB 1008 passed the California Assembly on June 1, 2017, and moved on to the state senate for review. Passage of AB 1008 would align with the fairness doctrine for residential lease applications for the formerly convicted. For more on this topic and why prescreening for criminal records before reviewing a rental agreement application is unlawful in California, please read my blog post entitled Hobson’s Housing Choice for Ex-Offenders.

AB 1008 will extend the Ban the Box/Fair Chance Hiring policy to private employers, removing the question of felony convictions from employment applications and prohibiting employers from performing a background check until after a conditional job offer is made. Removing this barrier to employment allows formerly convicted people a chance to be interviewed and evaluated according to their skills and experience relative to the job.

A similar getting-to-know-you dynamic occurred when I started dating after serving my sentence. Initially, I was motivated to divulge my criminal conviction on the first date. That baring of truth ruined my chances for second dates. I learned that waiting until the third date, after a woman got to know me a bit more so she did not simply define me by my past actions, put me in a better position to be considered for a serious relationship.

Legislative Intent

The five Democrat lawmakers who authored the bill make a clear statement of their intent. One of the authors added the following comments:

Numerous job applications include a question regarding the applicant’s conviction history. This automatically disqualifies many from being considered for employment. As such, the author believes that having to disclose a felony or misdemeanor conviction on a job application can automatically disqualify applicants from the job without notice from the employer or explanation from the applicant. The author states that the intent of AB 1008 is to give applicants with a criminal record the opportunity to be judged on their qualifications not their criminal histories.

The author notes that after a conditional offer has been made there is nothing preventing an employer from conducting a background check. The author argues that increased access to employment for people with conviction histories is essential to helping formerly incarcerated people support themselves and their families, strengthen communities, boost the economy, and reduce recidivism.[1]

As an aside, it’s important to note that “in 2015, President Obama directed all federal agencies to ‘Ban the Box’ and refrain from asking applicants about their convictions on the initial job application.” Once again, states should look to federal law for guidance toward uniformity of previously incarcerated persons’ reentry rights and privileges.

ARGUMENTS IN SUPPORT: Proponents state that African Americans and Latinos face deep and persistent levels of discrimination at all phases of the criminal justice system, which means a disproportionate amount of arrests and convictions for members of these groups. As a result, they have diminished access to jobs and economic security. Proponents declare that studies have shown that ban-the-box laws measurably increase the number of people with records who are interviewed and hired, which, in turn, increase public safety and boost the economy in the same communities that are often hardest hit by unemployment.

Finally, proponents argue that barriers to employment reduce public safety and economic health. They contend that employment is the most important factor in reducing recidivism. They go on to state that when those with criminal records are held back from employment, governments are deprived of potential productivity, additional tax revenue, while conversely having to spend more on the criminal justice system because of increased recidivism.

ARGUMENTS IN OPPOSITION: Opponents state that they are concerned that AB 1008 jeopardizes the safety of the workplace and puts employers in an untenable liability predicament.[2]

Their mentality is that once there’s a conviction, they can never put trust in the convict—no matter what.

The argument in opposition fails to consider the trend toward banning the box locally and on a statewide basis. Opponents fail to recognize important humanistic elements articulated in the bill, including Section 1(g):

Experts have found that employment is essential to helping formerly incarcerated people support themselves and their families, that a job develops prosocial behavior, strengthens community ties, enhances self-esteem, and improves mental health, all of which reduce recidivism. These effects are strengthened the longer the person holds the job, and especially when it pays more than minimum wage.

Section 1(d) gives additional information:

Nine states and 15 major cities, including Los Angeles and San Francisco, have adopted fair chance hiring laws that cover both public and private sector employers. Over 20 percent of the United States population now lives in a state or locality that prohibits private employers from inquiring into an applicant’s record at the start of the hiring process.

Even a short prison sentence can become a life sentence or impediment for life. Prison time is hollow time, yet it’s filled with hardships: broken family ties, education disruptions, financial troubles, employment voids that are difficult to explain, and much more. Without the prospect of playing on an even field for getting a job upon reentry, the previously incarcerated person—while free to be on the streets—remains in the chains of his or her bondage by state-sanctioned legal voids that continually fail to make living in society a reality. California’s legislative work toward giving this population a chance for a second and realistic look before immediate rejection, regardless of one’s criminal conviction history, is a step in the right direction. It makes logical sense.

What do you think? Please add to the conversation with experiences you’re aware of that underscore the need for passage of AB 1008 now pending in the state senate.

Image courtesy of 123rf

[1] Employment Discrimination: Conviction History, AB 1008, Senate Rules Committee, Third Reading (2017).

[2] Ibid.